Dismissed

Sajeev v. State of Kerala

Kerala HC10 Oct 2023Crl.Rev.Pet/143/2011

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a criminal revision petition challenging an acquittal. The Court held that the victim has a statutory right to file an appeal under Section 372 of CrPC after the 2008 Amendment. Consequently, the revision petition was not entertained.

What did the court decide?

Dismissal of the revision petition without prejudice to the revision petitioner's right to file an appeal.

Sajeev Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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TUESDAY, THE 10TH DAY OF OCTOBER 2023 / 18TH ASWINA, 1945

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CRL.REV.PET NO. 143 OF 2011

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AGAINST THE JUDGMENT IN CC 806/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THRISSUR

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REVISION PETITIONER/DEFACTO COMPLAINANT:

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SAJEEV, AGED 40 YEARS,
S/O.APPUKUTTAN, POLICE CONSTABLE,, KERALA POLICE
ACADEMY QUARTERS, RAMAVARMAPURAM, THRISSUR.

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BY ADVS.
SRI.P.SANTHOSH (PODUVAL)
SMT.R.RAJITHA

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RESPONDENTS/STATE & ACCUSED:

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1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2 BABU SUDHEENDRANATH

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S/O.GANGADHARAN,, KATTUMKANTI HOUSE,
VELUTHOOR VILLAGE, ARIMBOOR, THRISSUR.

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SENIOR PUBLIC PROSECUTOR SMT. SEETHA S.

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 10.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.R.P NO.143 OF 2011 2

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Dated this the 10^th day of October, 2023

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ORDER

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The revision petition is filed challenging the judgment passed in C.C. No.806/2007 by the Court of the Judicial First Class Magistrate -II, Thrissur, acquitting the second respondent/accused. The revision petitioner was the defacto complainant and the second respondent was the accused before the Trial Court.

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Factual narrative

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The prosecution case is that, the accused was conducting an Ayurvedic Hospital and promised the defacto complainant – CW1 (PW1) - after collecting an amount of Rs.1,01,000/-, that he would treat his daughter and make her walk. However, the accused beat the child with a cane. When the child's parents sought for her discharge, the accused refused the same. Thus, the accused committed the offences under Sections 342 and 324 of the Indian Penal Code. In the trial, PWs1 to 8 were

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Crl.R.P NO.143 OF 2011 3

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examined and Exts.P1 to P5 were marked in evidence. The defence witness was examined as DW1 and Ext.D1

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was marked on the defence side. The learned Magistrate, after analysing the materials on record, by the impugned judgment, acquitted the accused.

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It is challenging the said judgment that the guardian of the victim has filed this revision petition.

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Heard; Sri.Santhosh P.Poduval, the learned counsel appearing for the revision petitioner and the learned Public Prosecutor appearing for the first respondent.

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Indisputably, the revision petition is filed against an order of acquittal.

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The proviso to Section 372 of the Code of Criminal Procedure (in short,‘Code’.) specifically confers a right on the victim or his guardian/legal heirs to prefer an appeal as against an order of acquittal. The proviso to Section 372 was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5/2009) w.e.f 31.12.2009.

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Crl.R.P NO.143 OF 2011 4

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The question whether the amendment Act would apply to an offence prior to the amendment is no longer res integra in view of the declaration of law in Mallikarjun Kodagali v State of Karnataka [2018 (4) KLT 682 (SC)], wherein the Honourable Supreme Court has held that the crucial date for the amended provision to apply to file an appeal under the proviso to Section 372 of the Code is the date of passing of the judgment.

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In the case at hand, the impugned judgment was passed on 9.11.2010 i.e. after the Act of 5/2009 came into force. Therefore, the revision petitioner has a statutory right of appeal under the proviso to Section 372 of the Code before the court to which an appeal would normally lie.

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In Sobhanakumari K. v. Santhosh @ Pallan

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Shaji [2018 (1) KHC 195] this Court has held that there is no period of limitation prescribed under the Limitation Act to file an appeal by a victim under the proviso to Section 372 of the Code. Even if an appeal is filed after

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Crl.R.P NO.143 OF 2011 5

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the prescribed period of limitation, only an affidavit explaining the delay need be filed.

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The revision petition was admitted by this Court on 14.1.2011 and was pending consideration till today.

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In the light of the statutory remedy of appeal available to the revision petitioner, I am not inclined to entertain this revision petition.

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Resultantly, without prejudice to the right of the revision petitioner to file an appeal, as observed above, the revision petition is dismissed.

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SD/-

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C.S.DIAS, JUDGE

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rmm10/10//2023

Sajeev v. State of Kerala

Case brief

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What did the court decide?

Sajeev v. State of Kerala

Case brief

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What did the court decide?

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